Citation Nr: 1700313
Decision Date: 01/05/17 Archive Date: 01/13/17
DOCKET NO. 09-11 123 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas
THE ISSUE
Entitlement to service connection for lumbar sprain with degenerative disc disease (DDD) (claimed as back condition), as secondary to service-connected knee disabilities.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
R. Dodd, Counsel
INTRODUCTION
The Veteran served on active duty from March 1973 to March 1975.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas.
In December 2014, the Board remanded this case for further development. The case was then returned to the Board for appellate review in January 2016, at which time it denied entitlement to the issue on appeal. The Veteran then appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In September 2016, the Board's decision was vacated pursuant to a Joint Motion for Remand (Joint Motion).
The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in October 2014. A transcript of those proceedings is of record.
The Board has reviewed all pertinent evidence in the Veteran's claims file, which has been converted in its entirety to an electronic record as part of VA's paperless Veterans Benefits Management System (VBMS).
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The Joint Motion essentially directs the Board to obtain another medical opinion to (a) ensure the opinion addresses the specific question raised by this appeal (i.e., secondary service connection - is the claimed disability caused or aggravated by an already service connected disability), and (b) to ensure the opinion includes comment on the research studies referenced by a June 2011 VA treating physician.
In addition to the forgoing, any additional relevant records the Veteran identifies should be sought.
Accordingly, the case is REMANDED for the following action:
1. The Veteran should be requested to identify any additional relevant records he wants considered in connection with his appeal. The identified records should be sought.
2. After any additional evidence has been associated with the claims file, return the Veteran's claims file to the VA examiner who conducted the May 2015 VA examination. If that examiner is no longer available, then the Veteran's claims file should be forwarded to an appropriate person of like skill and qualification. The entire claims file should be reviewed by the examiner.
Following a complete review of the record, the examiner should set out the relationship between the Veteran's back condition and bilateral knee disabilities.
Specifically the examiner should address:
a) Whether the Veteran's current back condition is at least as likely as not caused by or due to his service-connected bilateral knee disabilities; and
b) whether the Veteran's current back condition is at least as likely as not aggravated by his service-connected bilateral knee disabilities.
In addressing these issues, the examiner should discuss:
i. the Veteran's reported post-service back injuries;
ii. the May 2012 and September 2014 statements from VA physicians addressing the relationship between the Veteran's back pain and knee disabilities;
iii. the June 2011 entry by the Veteran's VA treating physician referencing "Arthritis Care and Research Dec 2010", where 57.4 percent of patients with knee osteoarthritis in a study reported back pain; and a "JBJS 2003" document that apparently addressed the concept that low back pain is biomechanically linked to knee pain via the so called 'knee-spine' syndrome ; and,
iv. any distinction as may exist between a source of back pain and a cause for, or an aggravation of, an underlying disability.
The examiner should provide an explanation for all elements of his/her opinion.
3. After completing the above action, the claim should be re-adjudicated. If it remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).